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Monday, January 6, 2014

The Supreme Court, in a unanimous decision, issued a stay of
Judge Shelby’s opinion striking down Utah’s Amendment 3 (gay marriage ban). As
much as members of the LGBT community are upset about this development, I’m not
at all surprised. I was actually more surprised that the 10th
Circuit didn't stay the decision itself.

Judge Shelby’s opinion, though good, enunciated a lot of
ideas that have either been rejected by many Courts (same-sex marriage bans are
discrimination on the basis of sex – which he really didn’t get too because he
found the ban failed rational basis review) or are pretty weak to begin with
(that same-sex couples have a “fundamental right to marry” – I don’t think that
we do based upon Due Process jurisprudence). The opinions strong points – the nature
of “responsible procreation” etc. – haven’t really had an opportunity to be
analyzed by Circuit Courts and in many cases such reasoning by the State has
been upheld by Courts around the United States. Granted, most of these unfavorable
opinions were issued prior to the landmark Supreme Court case of Windsor v.
United States, but I don’t personally see Windsor as a useful case to argue
against state same-sex marriage bans (given its very limited focus and
federalism issues). Therefore, because
the issues in Judge Shelby’s opinion were rather revolutionary in the Court
system, it SHOULD HAVE been stayed by the 10th Circuit. Granted, the
State of Utah botched the stay request, and its briefs to the 10th
Circuit were laughable, but that doesn't hide the fact that the Court should
have granted said stay.

Regardless, I want to take this opportunity to remind my
readers that the Supreme Court had an opportunity to deal with marriage
equality on a nationwide scale last year in the Prop 8 case. But they punted,
instead deciding to issue an opinion based on standing issues. Read into that
what you will (I have, and I read that Kennedy isn't ready to legalize marriage
nationwide), but that fact must be remembered.

So now what we have is a case being
appealed in the 10th Circuit (UT), one being appealed in the 9th
Circuit (NV), and many going to trial this month and next around the country.
2014 will be a fun year!